B-143577, SEP. 14, 1960

B-143577: Sep 14, 1960

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WAS ISSUED JUNE 6. WITH THE MAIN AND REQUIRED CHARACTERISTICS OUTLINED ON PAGE " THE MAIN AND REQUIRED CHARACTERISTICS WERE SET OUT ON PAGE 3 AS FOLLOWS: "A) PERMIT SIMULTANEOUS RESET OF ALL COUNTERS IN EACH ROW. "E) HAVE INDIVIDUAL TAGS WITH PLASTIC COVER ABOVE EACH COUNTER WINDOW. "F) HAVE CORROSION RESISTANT PARTS (WORKING PARTS SHALL BE OF HARDENED STEEL EXCEPT THE ACTUATING BUTTON WHICH MAY BE OF PLASTIC).'. BIDS WERE OPENED ON JUNE 21. WAS FOUND TO BE LOW. THE PRODUCT OFFERED BY YOU WAS FOUND NOT TO CONFORM WITH PROVISION "C" OF THE MAIN AND REQUIRED CHARACTERISTICS IN THAT THE BUTTON WHICH MUST BE PUSHED TO ACTIVATE THE MECHANISM IS SET ABOVE THE COUNTER WINDOW SO THAT THE HAND OF THE OPERATOR COVERS THE COUNTER AT THE TIME THE NEXT DIGIT APPEARS.

B-143577, SEP. 14, 1960

TO THE DENOMINATOR COMPANY, INC.:

WE REFER AGAIN TO YOUR LETTER OF AUGUST 8, 1960, WITH ENCLOSURE, PROTESTING THE REJECTION OF YOUR BID SUBMITTED PURSUANT TO AN INVITATION ISSUED BY THE FEDERAL AVIATION AGENCY FOR THE PROCUREMENT OF MECHANICAL COUNTING DEVICES.

THE INVITATION, NO. 0-3577B1, WAS ISSUED JUNE 6, 1960, FOR MECHANICAL COUNTING DEVICES ,VEEDER-ROOT "VARY-TALLY" OR EQUAL, WITH THE MAIN AND REQUIRED CHARACTERISTICS OUTLINED ON PAGE " THE MAIN AND REQUIRED CHARACTERISTICS WERE SET OUT ON PAGE 3 AS FOLLOWS:

"A) PERMIT SIMULTANEOUS RESET OF ALL COUNTERS IN EACH ROW.

"B) PROVIDE FOR THE EASY REPLACEMENT OF SINGLE UNITS IN ANY POSITION IN THE ROWS.

"C) PERMIT VISIBILITY OF FIGURES DURING COUNTING.

"D) INCLUDE MOUNTING BRACKETS FOR SIDE OR UNDER-UNIT MOUNTING.

"E) HAVE INDIVIDUAL TAGS WITH PLASTIC COVER ABOVE EACH COUNTER WINDOW.

"F) HAVE CORROSION RESISTANT PARTS (WORKING PARTS SHALL BE OF HARDENED STEEL EXCEPT THE ACTUATING BUTTON WHICH MAY BE OF PLASTIC).'

BIDS WERE OPENED ON JUNE 21, 1960. YOUR BID, UPON EVALUATION, WAS FOUND TO BE LOW. HOWEVER, THE PRODUCT OFFERED BY YOU WAS FOUND NOT TO CONFORM WITH PROVISION "C" OF THE MAIN AND REQUIRED CHARACTERISTICS IN THAT THE BUTTON WHICH MUST BE PUSHED TO ACTIVATE THE MECHANISM IS SET ABOVE THE COUNTER WINDOW SO THAT THE HAND OF THE OPERATOR COVERS THE COUNTER AT THE TIME THE NEXT DIGIT APPEARS. WE UNDERSTAND ACCURATE COUNTS ARE VITAL FOR THE INTENDED USE OF THE ITEM UNDER PROCUREMENT. THE VISIBILITY OF FIGURES DURING COUNTING, OBTAINABLE WITH THE PRODUCTS OFFERED BY ALL OF THE OTHER BIDDERS, BECAUSE THE ACTIVATOR BUTTON IS BELOW THE COUNTER WINDOW, IS REGARDED AS A MATERIAL REQUIREMENT WHICH MUST BE MET BEFORE A BID MAY BE REGARDED AS IN CONFORMITY WITH THE SPECIFICATIONS. UPON CONSIDERATION, THEREFORE, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT YOUR BID SHOULD BE REJECTED AND AWARD WAS MADE TO THE NEXT LOW BIDDER ON JUNE 30, 1960.

YOUR PROTEST APPEARS TO BE BASED ON TWO POINTS. THE FIRST IS THAT WHERE A NAME BRAND OR EQUAL IS SPECIFIED THE INVITATION SHOULD NOT SET OUT IN ADDITION SPECIFIC REQUIREMENTS TO BE MET BY THE OFFERED PRODUCT SUCH AS THOSE LISTED AS MAIN AND REQUIRED CHARACTERISTICS. IT IS YOUR VIEW, AS EXPRESSED IN THE ENCLOSURE TO YOUR LETTER OF AUGUST 8, 1960, THAT YOUR PRODUCT IS OVER-ALL AT LEAST EQUAL TO THE NAMED BRAND AND, THEREFORE, MERITS CONSIDERATION FOR AWARD.

THE SPECIFIC REQUIREMENTS INSERTED IN ADDITION TO THE GENERAL BRAND NAME OR EQUAL QUALIFICATION ARE ENTIRELY CONSISTENT WITH THE POSITION OF OUR OFFICE. SEE 38 COMP. GEN. 345, 348, IN WHICH WE NOTED THAT THE PARTICULAR FEATURES OF THE NAMED BRAND DEEMED ESSENTIAL TO THE NEEDS OF THE GOVERNMENT SHOULD BE SPELLED OUT IN THE INVITATION.

YOU ALSO CONTEND THAT IF YOUR PRODUCT IS NOT RESPONSIVE TO THE SPECIFICATIONS NEITHER IS THE PRODUCT OF ANY OF THE OTHER BIDDERS. YOU NOTE SPECIFICALLY THAT IN YOUR VIEW THE PRODUCT OF THE SUCCESSFUL BIDDER DOES NOT MEET REQUIREMENT "F.'

WE ARE ADVISED BY THE CONTRACTING AGENCY THAT THE SUCCESSFUL BIDDER FURNISHED A WRITTEN AFFIRMATION PRIOR TO AWARD THAT THE UNITS OFFERED UNDER THE INVITATION HAVE WORKING PARTS OF HARDENED STEEL SOME OF WHICH ARE COPPER FLASHED.

IT HAS LONG BEEN HELD THAT THE DRAFTING OF SPECIFICATIONS TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT AND THE DETERMINATION WHETHER THE ARTICLES OFFERED BY BIDDERS CONFORM TO THOSE SPECIFICATIONS IS PRIMARILY WITHIN THE JURISDICTION OF THE ADMINISTRATIVE AGENCY CONCERNED. 17 COMP. GEN. 554. IN THIS INSTANCE THE REQUIREMENT THAT THE COUNTER FIGURES REMAIN VISIBLE WHEN THE COUNTER IS BEING ACTIVATED SEEMS TO HAVE A REASONABLE BASIS IN THE LIGHT OF THE USES FOR WHICH THE ITEMS ARE INTENDED. AS TO WHETHER THE PRODUCT FURNISHED BY THE CONTRACTOR WILL IN FACT MEET THE SPECIFICATIONS, THE UNITED STATES IN ENTERING INTO THE CONTRACT HAS BEEN INVESTED WITH A RIGHT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH ITS TERMS. IF SUCH PERFORMANCE IS NOT PROFFERED BY THE CONTRACTOR THE GOVERNMENT WILL HAVE A RIGHT TO DAMAGES FOR BREACH OF CONTRACT. IN VIEW OF THE PRIMARY JURISDICTION OF THE ADMINISTRATIVE AGENCIES IN SUCH MATTERS AND THE CERTIFICATION OF THE CONTRACTOR AS TO THE CONFORMITY OF ITS PRODUCT WITH THE SPECIFICATIONS, WE WOULD NOT BE JUSTIFIED IN TAKING ANY ACTION IN THE ABSENCE OF SOME INFORMATION WHICH WOULD CAST SUBSTANTIAL DOUBT UPON THE RESPONSIVENESS OF THE SUCCESSFUL BID TO THE SPECIFICATIONS.